ABSTRACT: This paper presents a conceptual analysis of Richard Posner's
empirical theory of judicial behavior. His theory opposes the
conventional view which holds that judges are insulated from external
pressures so their judicial decisions will be based upon a disinterested
understanding of the law. Since economics holds that all
people  including judges  attempt to maximize their utilities, Posner
thinks that the conventional view is an embarrassment which presumes
judges are not rational. His theory holds that the judicial insulation
has actually left judges maximizing their utilities by trading judicial
utility against leisure utility. Posner's theory presents a challenge to
the hope for a disinterested judiciary. It threatens as well to
eliminate the philosophy of law by reducing it to what he calls
antecedent conditions.

The Judge's oath requires him to judge according to the law, not
according to his pleasure.  Plato, Apology

The hard fact is that sometimes we must make decisions we do not like.
We make them because they are right, right in the sense that the law and the
Constitution, as we see them, compel the result  Justice Kennedy concurring,
Texas v Gregory Lee
Johnson

In the context of his experience on the bench and his interest in the
general theoretical approach of "Law and Economics," Richard Posner has developed
an important empirical theory about judicial behavior which has significant national
and international implications. In the economic analysis of law, economics,
understood roughly as capitalism, is taken as fundamental to the understanding
and application of law. Posner's theory is presented as a further development of
the general program. In this paper, I will examine important conceptual issues
related to Posner's theory, and I will contrast it with what I will call the
"conventional view" of judicial behavior.

Economics holds that people make decisions based on efforts to maximize
their utilities. That is sometimes expressed as an attempt to maximize happiness or
self-interest. Two of Adam Smith's insights are especially relevant here. A micro
thesis holds that in the commercial world people attempt to maximize their own
utility while a macro thesis holds that in a competitive economy, the pursuit of
utilities on the part of producers and consumers automatically leads to maximum
welfare. Economists refer to utility maximization as rational, and say any exceptions
are so rare that they do not pose significant exception to the general
economic assumption.

Posner is concerned because the conventional view of judicial behavior
presumes that judges and justices are, on these terms, irrational. For the
purposes of his analysis, Posner concentrates on judges and justices referenced
in Article III of the US Constitution. I will follow his lead here, though both
of us recognize extrapolation to other judicial settings would be reasonably
simple. From an international perspective, Article III judges have been more
exempted from the temptations and constraints of employment than other judges.
Posner points out that Article III judicial tenure is even more secure than
academic tenure:

A federal judge can be lazy, lack judicial temperament, mistreat his
staff, berate without reason the lawyers who appear before him, be reprimanded for ethical
lapses, verge on or even slide into senility, be continually reversed for elementary legal
mistakes, hold under advisement for years cases that could be decided perfectly well in days
or weeks, leak confidential information to the press, pursue a nakedly political
agenda, and misbehave in ways that might get even a tenured civil servant or university
professor fired; he will retain his office.

Beyond that, the judges in question will not have their pay lowered,
and judges who resist such temptations will not have theirs raised because all
judges of the same rank are paid exactly the same. As Posner says, "It is this
unique insulation of federal appellate judges from accountability that makes their
behavior such a challenge to the economic analysis of the law, and more broadly to
the universalist claims of the economic theory of human behavior."

Standard economic analysis holds that if employers are successful in structuring
conditions of employment, the self-interested behavior of employees will conform to
the interests the employer seeks. In the case of judges, the employer is the
government. The conventional view of judicial behavior would seem hold that the
purpose of the insulation is to free judges and justices to make decisions based
on a disinterested understanding of the law. Presumably, that was the meaning in
the quotations provided at the outset of this paper.

Posner's Theory. Posner argues that what I have called the conventional
view is in conflict with basic economic theory. If the conventional view is
correct, the plethora of judicial decisions provides a sufficiently large
exception to maximization of utility theory that we should conclude that it
is not only falsifiable but also falsified. If, however, economic theory is
correct, the conventional view is mistaken and, as the second half of
Posner's title indicates, far from freeing judges and justices to make
disinterested decisions, the insulation only changes the ways in which they
maximize their utilities. Posner argues that judges and justices are
rational, and he tells us in what ways they pursue their self interest in
the context of the unusual employment conditions.

Posner identifies two primary forces that act upon judges and justices
in the process of making their decisions and says that, since the insulation
has eliminated other forces, these have become the dominant ones. He says
judges enjoy hearing cases and making judicial decisions and, thus they
are a source of positive utility. Posner analogizes this to spectators of
theater productions. Presumably, they enjoy watching the drama unfold and
they enjoy making decisions in the form of granting or withholding applause.
He argues by analogy for a positive utility in voting per se by pointing
out that people vote in spite of the fact that their vote has a vanishingly
small chance of affecting the outcome. He completes the analogies by telling
us that judges and justices enjoy both watching arguments in cases unfold
and their role as voters. Thus, he suggests we should conclude the judges
and justices have a positive utility in these aspects of the job to which
they have been appointed. That fits well with utility theory since it means
the judges are operating out of self-interest and it fits well enough with
conventional view since that view does not hold that judges and justices
should dislike their jobs.

Along with the judicial utility function, Posner identifies another
major force in the lives of judges and justices. He says like most of us
judges and justices enjoy their leisure. In fact, justices may enjoy their
leisure even more than others. For example, he says. "Because the
judiciary has been placed on a nonprofit basis, we should expect that
judges on average do not work as hard as lawyers of comparable age and
ability. I believe that this is true, at least of appellate judges." Of
course, most of us enjoy our leisure time and activities. However, most
of us are not as insulated from the pressures of employment. Judges and
justices have considerable control over how they spend their time. They
can choose to emphasize either judicial or leisure activity. Posner tells
us that, whereas most enjoy hearing cases and making decisions, they do
not enjoy writing opinions. Not only is opinion writing time consuming,
but in addition, poorly written opinions may subject them criticism.
Posner says the first thing judges and justices do as case loads increase
is to delegate opinion-writing to their clerks. While that takes some of
the burden off them, it does not remove it entirely because, in the end,
their names will appear.

Thus far, we have dealt primarily with procedural matters. They should
arouse some concern for those who take judicial opinions to be centrally
important for the philosophy of law. The detailed precise examination of
each turn of phrase in judicial opinions that characterizes much legal study
in general and the philosophy of law in particular may be based upon false
assumptions about the actual operations of the law. To turn to an analogy in
the philosophy of science, it would be as if we were to discover that scientists
did not really take the precision of calculations seriously but were ready to
accept whatever seemed convenient as produced by their graduate assistants.
Nevertheless, this discovery need not concern the conventional view much since
that view is directed toward a disinterested interpretation of the law rather
than carefully developed judicial opinions. However, Posner tells us the
trade-off has an impact on the substance of the decisions as well. This is
not the place to examine the many ways Posner cites that the maximization of
judicial utility influences the decision. As a case in point, I will discuss
one which Posner calls "go along" voting.

Let us turn to an hypothetical example, which will involve a three
justice appellate court. We will concentrate on the behavior of judge C.
Along with his colleagues, C has heard the case and read the briefs.
For the purposes of this exercise, let us say C has made a private
decision that the appeal is without merit and should be turned down.
C, then, has gained the benefits of spectator. Now, let us assume in
conference that A expresses a strong view that the appeal has merit
and the case should be decided in the appellant's favor. B expresses
mild opposition to A's view. C now recognizes that he may be in
something of a bind. If he expresses his honest opinion, he may find
himself writing an opinion for a majority composed of him and B. That
will mean at least directing his clerks' writing, being prepared to
respond to what may be well researched and clearly articulated views of
A, and so forth. As a consequence, after hearing the preliminary opinions
of the other two justices, C decides to "go along" with A. In that way,
A will write the majority opinion and B may be forced to write a
dissenting opinion. Recognizing the disutility to him, B may even say she
is convinced by A to change her mind and make the decision unanimous. In
any event, C will escape opinion-writing responsibilities and, thereby,
enhance his leisure time. All of this results from what Posner says is the
effort of judges and justices and everyone else to maximize their utilities.

Implications for International Law. The American experiment in
constitutional democracy has gone further than most polities in insulating
judges and justices presumably in an effort to have them make professional
decisions irrespective of their personal interests. If, as Posner has
suggested, this portion of the experiment was naively grounded and cannot
achieve its objective, there are lessons not only for the United States
but also internationally. On the basis of Posner's analysis, it is, for
example, simply naive to think that a disinterested international judiciary
with binding authority might be established. In addition, in spite of
frequent criticisms from the "West," it is disingenuous to suggest that
other so-called "developing" countries should establish an independent
professional judiciary. Posner's analysis shows us that there is no such
thing as a professional judiciary capable of going beyond its self-interest
in the name of the law or justice.

Professional Ethics. In explicating his understanding of judicial
behavior, Posner uses three analogies. I have already discussed two,
the spectator and the voter
analogy. The third is to managers of non-profit organizations. Since
judges, like non-profit managers, do not work in a business environment,
their compensation cannot be a function of corporate profitability. Thus,
Posner indicates that, like non-profit managers, judges and justices look
for non-monetary "perks" such as increased job security, more leisure
opportunities, reduced attention to efficiency, etc. as a means of substitute
compensation. What is striking about Posner's analogies is that none of them
are to professions at least as that term is used to apply to fields such as
accounting, architecture, engineering, law, medicine, nursing and even
university professorships. This is not the place to enter into the contentious
debate about what constitutes a profession, but in general, we might say that
professionals are expected to be prepared to go beyond their self-interest in
the name of the standards of the profession. Prior to Posner's analysis, we
might have thought of the judiciary as an archetype profession. Conventionally
speaking, we want judges to set aside their self-interest in order to render
professional decisions. Posner says that does not happen. His analysis suggests
that the entire professional enterprise is naively grounded. For example, we
should not expect physicians and nurses to set aside their self-interest and
attend to the interests of the patient; we should expect them to attempt to
maximize their utilities whatever that might mean for the patient's health care.

Philosophy of Law. In introducing his approach, Posner says, "Instead of
trying to explain directly why judges adopt one judicial philosophy or another,
I shall concentrate on the antecedent question: Are judges rational?" Of course,
Posner concludes they are at least insofar as rational is defined as maximization
of utilities. Answering the "antecedent question" as he does brings into question
philosophy of law itself. Once it is discovered that judicial decisions arise
out of efforts to maximize personal utility, the philosophic discussion of them
and the accompanying opinions would seem to be a rather empty exercise. We should
not examine "judicial philosophy" but the specific utility functions of the
judges. Posner's theory threatens to eliminate by reduction the philosophy of
law. Another important analogy may be available to us in the case of business
ethics. One of the reasons many philosophers have found "business ethics" to
be so elusive is that once it is understood that, economically speaking, the
goal of business is to maximize profits, philosophically there is not much
more to be said.

A Lacuna. We should recall that Adam Smith put forward both a micro thesis
and a macro thesis. The micro thesis, which Posner has extended, is that people
act so as to maximize their utilities (happiness). The macro thesis is that
such actions lead naturally to desired ends. In the case of business, they
lead to general welfare. Posner may be right in regard to his micro thesis.
As he says, we can only wait to see whether attempts to falsify the thesis are
successful. However, Posner does not address himself to the macro thesis.
What needs to be shown is that by the pursuit of the maximization of their
happiness, judges and justices, whether knowingly or not, actually achieve justice.

There is a ready example for Posner in the law. In our adversarial system,
lawyers, present as vigorous a case as they can on their client's behalf. On the
micro level, the compensation conditions for lawyers insure they represent their
clients' interests. On the macro level, it is then up to the courts to decide
what is required by the law or by justice. Since we are still presumably interested
in having courts achieve justice or, at the very least, a faithful interpretation
of the law, Posner needs to show how the pursuit of judicial self-interest
achieves those socially important objectives. There is some prima facie reason
for skepticism since many of the "judge-invented" procedures addressed by Posner
may lead them on occasion to vote in ways even they think are legally inappropriate
in order to maximize their happiness. Since economists insist that utility functions
are about falsifiable theories and not psychological accounts, the prima facie
skepticism may be overcome, but it will take some effort to do so in the future if
this program is to be successful.

Notes

(1) Richard A. Posner, "What Do Judges and Justices Maximize? (The Same
Thing Everyone Else Does)", Supreme Court Economic Review, Volume 3 (1993),
pp. 1-41. Judge Posner
currently serves on the United States Court of Appeals for the Seventh
Circuit. His name appears
frequently on the "short lists" of nominees for the Supreme Court.
He has been a leader of the "Law and Economics"
approach. See, for example, Richard A. Posner and Francesco Parisi Law
and Economics (Lyme, NH:
Edward Elgar, Pub., 1997), Richard A. Posner, Economic Analysis of Law,
5th ed. (New York, NY: Aspen Law
and Business, 1997), Richard A. Posner, The Federal Courts: Challenge
and Reform (Cambridge, MA:
Harvard University Press, 1996), Richard A. Posner, Economic Analysis
of Law (Little Brown, 1992) and
Richard A. Posner, The Problems of Jurisprudence (Harvard University Press,
1990), Richard A. Posner The
Economics of Jurisprudence (Cambridge, MA: Harvard University Press, 1981).

(2) Posner, "What Do Judges and Justices Maximize?", pp. 4-5.

(3) Ibid, p. 7.

(4) I have not said the purpose was to arrive at an objective interpretation
of the law as some platonic writings suggest. I have only said the conventional
view holds that judges and justices should interpret the law as they
disinterestedly understand it. Justice Kennedy's qualification of "as we see
them" forsakes a notion of platonic objectivity.

(5) Ibid, p. 10.

(6) Qua academic, I would note the parallel to university professors and
teaching, though the university achieves the outcome with distribution of
reward and punishment devices not applicable to the Article III judges.

(7) Along with the use of stare decisis, Posner cites others such as "...
the multitude of devices, most judge-invented, for ducking issues ... :
the issue is moot or unripe, or calls for an advisory opinion, or
presents a nonjusticable political question, or the party pressing it lacks
standing, or the appeal was filed a day late, or the appellant had failed
to exhaust some administrative or judicial remedy. These devices enable
judges to reduce their workload, ..." Ibid, p. 21.